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Diaz Long v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

January 16, 2018

DONNA A. DIAZ LONG, Plaintiff,


          Thomas M. Parker United States Magistrate Judge.

         I. Introduction

         Plaintiff, Donna A. Diaz Long (“Long”), seeks judicial review of the final administrative decision of the Commissioner of Social Security partially denying her applications for supplemental security income (“SSI”) and disability insurance benefits (“DIB”) for the period from October 24, 2011 through August 8, 2013 under Titles II and XVI of the Social Security Act. The parties have consented to my jurisdiction. See ECF Doc. 16. Because the commissioner's decision is supported by substantial evidence, the final decision of the commissioner must be AFFIRMED.

         II. Procedural History

         Long applied for disability benefits on October 24, 2011 (Tr. 171, 313) and SSI benefits on April 18, 2012 (Tr. 318). Long alleged disability based on systemic lupus erythematosus, fibromyalgia, arthritis, and panic and depressive disorders (20 C.F.R. §§ 404.1520(c) and 416.920(c)). (Tr. 15) Long's applications were denied initially on June 14, 2012. (Tr. 171) Long requested a hearing on June 20, 2012. (Tr. 171) Administrative Law Judge (“ALJ”) Brian W. Lemoine heard the matter on June 14, 2013, and rendered an unfavorable decision on September 11, 2013. (Tr. 167) Long filed a timely request for review of the hearing decision on October 16, 2013. (Tr. 253) The Appeals Council remanded the case to the ALJ on March 26, 2015. (Tr. 181) ALJ Renita F. Barnett-Jefferson heard the matter after remand on August 19, 2015. (Tr. 33) ALJ Barnett-Jefferson found Long was not disabled prior to August 9, 2013, but became disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act on her 55th birthday on August 9, 2013. (Tr. 23)

         III. Evidence

         Long now raises three arguments: (1) the ALJ erred in weighing the opinion of treating physician John D. Morgan, Jr., M.D.; (2) the ALJ erred by not assessing Long's capacities for sitting, standing, walking, and lifting on a function-by-function basis; and (3) the ALJ erred by only including the limitation in the residual functional capacity (“RFC”) that Long “would need the use of a cane for walking to and from the worksite” (Tr. 16-17). See ECF. Doc. 14, Page ID# 877. Because the issues Long has raised are limited, it is not necessary to summarize the entire record.

         A. Relevant Personal, Educational, and Vocational Evidence

         Long was 57 years old on the date of the most recent hearing. (Tr. 36) Long completed high school and took online college courses, but did not complete a degree. (Tr. 18, 357) Her past work experience included work as a magazine customer service representative, secretary, and telemarketer. (Tr. 357-358, 364)

         B. Medical Evidence

         On April 22, 2010, Long had her initial visit with C.P. Solomon, MD regarding her widespread arthralgia, ASCVD with a history of stroke, TIA, stress, epigastric pain with ulcers, and fibrocystic breast disease. (Tr. 493) Dr. Solomon noted Long's muscle strength and tone and her gait were normal. (Id.) Dr. Solomon wrote an undated letter in which he stated he has been treating Long for systemic lupus “erythematosis.” (Tr. 492)

         On June 30, 2010, Keith W. Weaver, M.D. evaluated Long. (Tr. 481) Long reported “trouble” with her shoulder and elbow that extended into her hand. (Id.) Dr. Weaver found Long had full motion of her neck, including flexion, extension, rotation, and lateral bends. (Id.) Dr. Weaver found that any motion about her right shoulder was painful. (Id.) Dr. Weaver found she had good power on abduction and external rotation on the left. (Id.) Dr. Waver found Long was able to stand on her heels and toes and could squat and arise fairly well. (Id.) X-rays of Long's neck showed a degenerative cervical disk, without posterior spurring, at ¶ 5-6 and x-rays of her right shoulder showed no obvious fractures, dislocations, or other pathology. (Id.) Dr. Weaver diagnosed subacromial bursitis, right tennis elbow, and probable other tendinopathies. (Id.) Dr. Weaver injected Long's subacromial bursa with Lidocaine and Celestone. (Id.)

         On July 14, 2010, Dr. Weaver evaluated Long regarding her complaints of neck, right shoulder, left shoulder, and right elbow pain. (Tr. 479) Dr. Weaver noted Long had fairly good motion in her right shoulder, negative impingement, and tenderness of her proximal extensor origin. (Id.) Dr. Weaver injected Long's proximal extensor origin in her right elbow with Lidocaine and Celestone. (Id.)

         On October 14, 2010, Dr. Solomon evaluated Long regarding her chronic pain. (Tr. 490) Dr. Solomon noted Long had bilateral pain at her pressure points and he believed Long had fibromyalgia. (Id.) Dr. Solomon prescribed Long Trazodone and Lyrica, and continued her treatment with Protonix and Plavix. (Id.) Dr. Solomon noted Long's muscle strength and tone were normal and her gait was without abnormality. (Id.)

         On February 21, 2011, Dr. Weaver evaluated Long's condition. (Tr. 477) Long complained of multiple joints, including her shoulders, elbows, neck, back, and right hip. (Id.) She reported pain in her right hip that radiated into her leg and calf that had started four or five weeks prior to her appointment. (Id.) Dr. Weaver noted Long was able to walk with a mild limp and squat “fair, but not fully.” (Id.) Long's straight leg raising was negative while seated and Dr. Weaver found tenderness over Long's right and some on her left greater trochanter. (Id.) X-rays of Long's pelvis and hips showed well-maintained joint space. (Id.)

         On April 15, 2011, Dr. Solomon evaluated Long for a follow-up regarding her chronic problems including fibromyalgia, arthritis, stress, fibrocystic breast disease, and epigastric pain. (Tr. 488) Dr. Solomon noted that Long's muscle strength and tone were normal and her gait was without abnormality. (Id.)

         On June 2, 2011, x-rays of Long's right hip showed that her hip was located normally, there was no evidence of fracture or dislocation, and the interpreting physician found no acute right hip abnormality. (Tr. 523) X-rays of Long's femur taken the same day showed her osseous alignment was normal with no fracture, dislocation, or acute abnormality. (Tr. 524)

         On October 28, 2011, an emergency physician at the Princeton Baptist Medical Center evaluated Long for pain in her right shoulder, hip, and leg. (Tr. 512) Long reported chronic pain in her leg, calf, neck, and back. (Id.) Long also reported that her pain medications had been stolen. (Tr. 512, 515)

         C. Opinion Evidence

         1. Karl Kirkland, Ph.D. - Consultative Psychological Examiner

         Karl Kirkland, Ph.D. performed a psychological evaluation of Long on May 18, 2012. (Tr. 539) Although it is not necessary to discuss Dr. Kirkland's opinions concerning Long's psychological condition in order to address the issues Long has raised in this appeal, it is important to note that Long told Dr. Kirkland that she had walked approximately half a mile from the bus stop to Kirkland's office for her appointment. (Id.)

         2. Ilene Stone, M.D. - Consultative Examiner

         On April 29, 2013, Ilene Stone, M.D. performed an internal medicine examination of Long. (Tr. 549) Long complained of generalized pain located in her shoulders, arms, hands, hips, thighs, buttocks, legs, and calves that began in February of 2010. (Id.) She reported she was diagnosed with systemic lupus erythematosus and fibromyalgia in August of 2010. (Id.) Long reported her pain intensity was seven out of ten at best and ten out of ten at worst. (Id.) Long reported she had taken Lyrica, Lortab, Plaquenil, and prednisone but had stopped taking her medications and experienced a marked increase in her pain and decrease in her ability to do self-care. (Id.) Long stated her pain increased with reaching, making sudden movements, standing for more than twenty minutes, sitting, lying in one position, bending, lifting, cold weather, walking, and wearing clothing. (Id.)

         Long reported she did not do cooking, cleaning, laundry, or shopping due to problems standing and pain in her hands, arms, and legs. (Tr. 550) Long stated she showered every other day and dressed herself with help. (Id.) Long stated she watched television and read. (Id.)

         Dr. Stone noted Long's stance was normal and her gait was antalgic and favored her right lower extremity. (Tr. 551) Dr. Stone found Long could not walk on heels and toes or squat. (Id.) Dr. Stone noted Long used a cane for pain outdoors that had been prescribed by a doctor and was medically necessary. (Id.) Dr. Stone noted Long was able to change her clothes for the exam, get on and off the exam table, and rise from a chair without difficulty. (Id.)

         Dr. Stone found Long exhibited negative straight leg raise in the seated position, but positive in the supine position. (Tr. 552) Long had full range of motion in her elbows, forearms, wrists, hips, knees, and ankles, but limited range of motion in her shoulders. (Id.) Long's joints were stable, but Dr. Stone noted tenderness in Long's feet, knees, thoracic and lower lumbosacral spine and paraspinals, supraspinatus muscles, scapula, shoulders, elbows, lateral aspects of the hips, SI joints, sciatic notches, and hands. (Id.) Dr. Stone did not find any subluxations, contractures, ankyloses, thickening, redness, heat, swelling, or effusion. (Id.) Dr. Stone found Long had full range of motion in both hands, but her grip strength was limited by pain. (Id.) Long was able to zip, button, and tie, but her dexterity was limited due to pain. (Id.)

         Dr. Stone diagnosed Long with systemic lupus erythematosus, fibromyalgia, hypertension, and a history of palpitations, seizures, depression, cerebrovascular accident, multiple transient ischemic attacks, and asthma. (Id.) Long indicated she had not been taking the medications prescribed to treat her conditions. (Tr. 550)

         In her medical source statement regarding Long's physical capacity, Dr. Stone found Long could lift or carry up to 10 lbs. frequently, 11 to 20 lbs. occasionally, and never lift or carry 21 or more lbs. based on the: noted tenderness in Long's knees, shoulders, hips, and other joints; limited range of motion in Long's shoulders; Long's use of a cane for ambulation; and her inability to walk on toes and heels. (Tr. 555) Dr. Stone found Long could sit for two hours, stand for twenty minutes, and walk for thirty minutes without interruption. (Id.) In an eight-hour work day, Dr. Stone found Long could sit, stand, or walk for five hours. (Id.) Dr. Stone found it was medically necessary for Long to use a cane to ambulate, but that Long could use her free hand to carry small objects. (Tr. 555) Dr. Stone noted Long used her cane in the entire examination. (Id.) Dr. Stone found Long could use her hands to handle, finger, and feel frequently, reach and push/pull occasionally, but never to reach overhead based on the limited range of motion in Long's shoulders and decreased grip strength. (Tr. 556) Dr. Stone found Long could only occasionally use her feet to operate foot controls due to the pain and tenderness in her knees. (Id.) Dr. Stone found Long could occasionally climb stairs and ramps, but could never climb ladders or scaffolds, balance, stoop, kneel, crouch, or crawl. (Tr. 557) Dr. Stone found Long could occasionally tolerate vibrations, but could never tolerate exposure to unprotected heights, moving mechanical parts, operating a motor vehicle, humidity and wetness, dust, odors, fumes, or pulmonary irritants, or extreme temperatures. (Tr. 558)

         In her medical source statement, Dr. Stone opined Long could not shop, use standard public transportation, or walk a block at a reasonable pace on rough or uneven surfaces. (Tr. 559) Dr. Stone opined Long could travel without a companion for assistance, ambulate without using a wheelchair, walker, or two canes or crutches, climb a few steps using a handrail, prepare a simple meal and feed herself, care for her personal hygiene, and sort, handle, or use papers or files. (Id.)

         3. M. Tosi Gilford, M.D. - State Agency Reviewing Physician

         On June 6, 2012, state agency reviewing physician M. Tosi Gilford, M.D. issued an RFC assessment of Long's physical capacity. (Tr. 140-42) Dr. Gilford found Long could lift and/or carry 20 lbs. occasionally and 10 lbs. frequently. (Tr. 140) Dr. Gilford found Long could stand and/or walk or sit with normal breaks for a total of six hours in an eight-hour workday. (Id.) He found Long had unlimited ability to push and/or pull, other than the limitations on her ability to lift and/or carry. (Tr. 141) He found Long could climb ramps or stairs, balance, stoop, kneel, crouch, or crawl occasionally, but could never climb ladders, ropes, or scaffolds. (Id.) Dr. Gilford found Long must: avoid concentrated exposure to cold, heat, wetness, humidity, and vibrations; avoid all exposure to hazards; but could handle unlimited exposure to noise, fumes, odors, dusts, gasses, and poor ventilation. (Id.) Dr. Gilford opined Long must avoid unprotected heights, hazardous machinery, uneven terrain like curbs or uneven pavement, hazardous situations, and wet, slippery, or icy surfaces. (Tr. 142)

         4.John Morgan, Jr. M.D. - Treating Rheumatologist

         Treating physician John Morgan, Jr. M.D. prepared a voluntary benefits disability claim form for Long on July 19, 2011. (Tr. 496) Dr. Morgan noted Long had reported diffuse pain that required ambulation with a crutch. (Id.) Dr. Morgan stated that Long's limited range of motion, allodynia, and hyperpathia support his diagnosis. (Id.) Dr. Morgan planned to treat Long with rest, exercise, physical therapy, and medications, including Lyrica and Lortab, but the medical record did not specify the type of physical therapy. (Tr. 497). Dr. Morgan opined that Long could occasionally sit, but never stand or walk. (Id.) He found Long could occasionally perform fine finger movements or hand eye coordinated movements, but could never push or pull. (Id.) Dr. Morgan opined that Long could never climb, twist, bend, stoop, reach above shoulder level, or operate heavy machinery. (Id.) He found Long could occasionally lift 10 lbs., but could never lift over 10 lbs. (Id.) Dr. Morgan opined Long should not do repetitive hand and foot actions, and could never walk, bend, or stoop. (Tr. 498) Dr. Morgan opined that he did not support Long's return to work “within the restrictions and limitations [he had] provided” and stated he had not determined when he expected improvement in Long's physical capacity. (Id.)

         D. Testimonial Evidence

         At her initial June 14, 2013 ALJ hearing, Long testified, in relevant part, as follows: (Tr. 77-129)

• She was 54 at the time of the hearing. (Tr. 82)
• She obtained a high school diploma, and had undergone clerical, entrepreneur, grant writing, and job related training. (Tr. 82)
• She became disabled on June 21, 2011, when she could no longer work as a patient care secretary at Baptist Health Center Princeton. (Tr. 83-85)
• She lived with her sister and niece and stayed in the living room of a two-bedroom apartment. (Tr. 85)
• She stated her work as a patient care secretary in a surgery unit involved typing, filing, supplies, telephones, charting, liaison work, and included lifting and carrying. (Tr. 86-87)
• She testified she left her last job because she started experiencing pain in her shoulders, hips, arms, hands, fingers, and legs and she had to limit her movement and rely on the support of other staff. (Tr. 89)
• She got her cane in 2011, and she used it to get up from chairs, walk, and balance. (Tr. 89, 99, 101)
• She had used crutches in 2010 due to immobility in her hips that cause her to fall ...

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